SZQMA v Minister for Immigration
[2011] FMCA 850
•4 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQMA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 850 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegations that the Reviewer failed to address a claim made by the applicant and also a claim which was apparent from the materials before him. |
| Migration Act 1958, ss.5, 36, 46A,195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 SZPZI v Minister for Immigration & Citizenship [2011] FMCA 530 SZQGP v Minister for Immigration & Citizenship [2011] FMCA 701 |
| Applicant: | SZQMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1617 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 31 October 2011 |
| Date of Last Submission: | 31 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Godwin |
| Counsel for the First Respondent: | Ms L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1617 of 2011
| SZQMA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 20 or 22 March 2010. On 30 May 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). He is currently in immigration detention and, it may be assumed, has been so since he landed at Christmas Island. On 23 December 2010 an officer in the department administered by the first respondent Minister (“Minister”) assessed the applicant as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 27 June 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s decision. He has sought a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation.
The evidence satisfies me that the applicant had no visa when he entered Australia. Because of this and the fact that he entered Australia at Christmas Island which under s.5(1) of the Migration Act 1958 (“Act”) is an “excised offshore place”, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49].
In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out in pages 3-5 of those reasons and in the Court Book which was exhibit 2. Relevant factual allegations are summarised below.
Entry interview
The applicant made the following claims during his entry interview on 2 April 2010:
a)he is a Tamil Hindu born in Jaffna, Sri Lanka;
b)during the cease-fire period he was forced to help the LTTE with their martyr day celebrations;
c)after the cease-fire ended, the Sri Lankan army started looking for people who had helped the LTTE, killing some of them;
d)members of the army had visited his house whilst he was not there in search of him. He was afraid and thus moved to Colombo;
e)twenty-five days after he moved to Colombo, the police came to his lodgings and he was arrested on suspicion of being an LTTE member. He was detained for two days and interrogated before being remanded for seven days and then granted bail. The court case went on for ten months and he was found to be innocent;
f)in May 2007 he and other Tamils were removed from Colombo by the government to be sent back to Jaffna. On the way they stopped at Vavuniya and after a successful appeal by a Tamil organisation, they were returned to Colombo; and
g)it had not been safe for him to remain in Colombo with a Jaffna ID. There had been no protection available for him as a Tamil and the situation would be the same were he to return to Sri Lanka.
RSA application
In a statutory declaration declared on 30 May 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)in 2004 while working in his uncle’s shop, the LTTE had come in and demanded that he help them by handing out pamphlets and preparing for martyr day celebrations. He helped them on three occasions over a period of two years. If he had refused to help them, he would have been taken to a camp and punished;
b)the army had visited his home looking for him in 2006. He did not know why but it may have been because he had helped the LTTE. The army had not done anything to his family;
c)when he was arrested in January 2007 in Colombo, he was detained for three days. The police kicked and punched him in an attempt to make him admit that he was a supporter of the LTTE but he denied this charge. He retained a lawyer and was acquitted after ten months;
d)in May 2008 the Special Task Force (“STF”) took him from his lodgings in Colombo to a building about ten minutes away. They wanted to know what he was doing in Colombo and he told them that he was there to work. After kicking and punching him, they gave him back his identification and he returned to his lodgings. Nothing happened to him from then until he left Sri Lanka on 3 September 2009;
e)he left Sri Lanka on 3 September 2009 by flying to Malaysia on a fourteen day visa. He stayed in Malaysia until March 2010 when he sailed for Australia; and
f)he left Sri Lanka because of a general fear of what was happening to Tamils in Sri Lanka. He feared that he would be seriously harmed or killed, particularly as he had a record of being charged as a suspected terrorist. He would not be safe in Sri Lanka because the police and the army had records of him and if he was stopped and identified anywhere in Sri Lanka he would be suspected of being an LTTE supporter.
Proceedings before the Reviewer
The applicant’s agent sent submissions to the Reviewer dated 15 March 2011 making an additional claim that the applicant would be detained and would face persecution as a returning failed asylum seeker.
A further submission dated 24 May 2011 referred to a report that the Sri Lankan government had issued a directive to its missions to stop issuing passports to nationals who had applied for refugee status in a foreign country. The applicant’s migration agent submitted that as the applicant did not have a passport, on his return he would be easily recognisable as a failed asylum seeker.
The applicant was interviewed by the Reviewer on 26 May 2011 at which point he made the following additional claims:
a)some of his friends who had helped the LTTE had been arrested and detained in Colombo. He had heard that young Tamils like him were targeted by the army;
b)after he had helped the LTTE by arranging functions and distributing leaflets, the police came to his parents’ house to question him about his work for the LTTE but he was not there;
c)after initially saying that he had not been physically harassed by the STF, the applicant said that when he was detained by the STF he was punched and kicked on the head but he did not seek medical treatment because he had sustained internal wounds only;
d)he had travelled to India on three occasions using his own passport, travelling through Colombo airport;
e)although the Sri Lankan government had released some Tamils from camps they were still killing many of them. Many Tamils were still in detention, abductions continued in Jaffna and the “Prevention of Terrorism Act” was still in force. Without an ID card, it would not be safe for him to move around and, as he had helped the LTTE, he and his family would be in danger. He did not fear the LTTE; and
f)the Sri Lankan government would view him as a terrorist and they would identify and target him. He would also be targeted by anti-LTTE groups. People from his community would know that he had been out of the country for a long time and would notify the authorities.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons.
The Reviewer accepted that the applicant had been compelled to assist the LTTE on three occasions from 2004 to 2006 by handing out pamphlets and by helping to organise martyr day celebrations. The Reviewer also accepted that the Sri Lankan army had attended the applicant’s house in 2006, when he was not there, to ask for him and that he had moved to Colombo in 2006. The Reviewer accepted that in early 2007 the applicant was arrested, detained and beaten when the army went to his lodgings and that he was charged with being an LTTE supporter after it was discovered that he was from Jaffna. The Reviewer accepted that the applicant was acquitted of this charge after ten months. He also accepted that the applicant was forced back as far as Vavuniya and then returned to Colombo.
Whilst accepting that young Tamils like the applicant were targeted by the army, given the applicant’s inability to name any of the young people in question the Reviewer did not accept that the applicant had had friends who were specifically targeted.
The Reviewer accepted that the applicant had been detained in 2008 but did not accept that he had been assaulted. The Reviewer noted that at their interview the applicant initially claimed that he had not been assaulted and only changed his story when its inconsistency with his statutory declaration was put to him. Due to the applicant’s inconsistent account and his admission that he had not sought medical treatment, the Reviewer did not accept that he had been assaulted in 2008.
The Reviewer found that the applicant would not be suspected of being an LTTE supporter on his return to Sri Lanka. In this regard:
a)the Reviewer referred to country information indicating that the situation for Tamils had generally improved since the end of the war and that there was no longer a presumption of “eligibility” for Sri Lankans of Tamil ethnicity originating from the north of Sri Lanka;
b)whilst accepting that from 2004 the applicant had assisted the LTTE on three occasions, under threat, and that his family had been visited by police in relation to his whereabouts, the Reviewer noted that the applicant’s account did not indicate that his family had been harmed in any way or that the police and army had continued to enquire about his whereabouts since that one visit in 2006. The Reviewer found that the applicant’s assistance of the LTTE was of a comparatively minor nature, that it had occurred a substantial time earlier and that the evidence did not indicate that any of the applicant’s friends or family had been associated, or had been perceived to be associated, with the LTTE; and
c)the Reviewer noted that when the applicant was charged with being an LTTE supporter in 2007, he was able to successfully defend the charge through the court system. The Reviewer also noted that, on his own evidence, the applicant had been released on the day he was detained in 2008. The Reviewer also referred to his finding that the applicant had not been physically harmed on that occasion. The Reviewer further noted that nothing had happened to the applicant from 2008 until September 2009 and that he had been able to depart Sri Lanka on three occasions to visit India and once to travel to Malaysia on his own passport. The Reviewer found that this strongly supported the finding that the applicant was not of continuing interest to the authorities.
In relation to the risk facing the applicant as a failed asylum seeker returning from Australia, the Reviewer referred to Department of Foreign Affairs and Trade (“DFAT”) country information indicating that the Sri Lankan authorities had no procedures in place to identify failed asylum seekers and that there was no difference in the treatment of deportees or returnees based on their ethnicity or religion. The Reviewer found that the applicant was not in the same situation as some mistreated Tamil returnees who were on the “Merak boat”. The Reviewer referred to statements by the Edmund Rice Centre that asylum seekers returning from Australia had been detained and assaulted, noting that this was inconsistent with the DFAT report. The Reviewer preferred the DFAT report which he considered provided a detailed consideration of the issues concerning the return of failed asylum seekers from Australia. He also preferred the DFAT report because DFAT is responsible for providing detailed information to the Australian government on such matters. The Reviewer noted that the DFAT advice suggested that there was anecdotal, but not hard, evidence that returning to Sri Lanka as a failed asylum seeker with no documentation could influence the treatment received at the airport. The Reviewer found that the applicant did in fact have documentation as evidenced by a copy of his birth certificate that he had provided, and that he did not possess any of the other characteristics, such as departing Sri Lanka illegally, possessing a criminal record or having an arrest warrant issued in relation to him, which were referred to in the DFAT report as having an anecdotally-suggested risk. Based on the country information and his individual circumstances, the Reviewer found that the applicant did not face a real chance of serious harm in the reasonably foreseeable future if he were to return to Sri Lanka as a failed asylum seeker.
The Reviewer found that the applicant did not face a real chance of serious harm, then or in the reasonably foreseeable future, for reasons of his Tamil race, imputed political opinion as a suspected LTTE supporter or any other Convention reason.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The IMR failed to address a clearly articulated claim.
2.The IMR failed to address a claim that rose clearly from the material before him.
Reviewer failed to address clearly articulated claim
The claim which the applicant alleges the Reviewer failed to address was one based on his Tamil ethnicity. The applicant submitted that the question of ethnicity had not been dealt with and that the Reviewer had failed to make any findings concerning his fear based upon his ethnicity. In this connection, it is apparent from the statutory declaration completed at the time of the RSA application on 30 May 2010 and from his advisers’ submissions to the Reviewer dated 15 March 2011 and 24 May 2011 that the applicant made a claim based on his Tamil ethnicity.
While a Reviewer’s failure to deal in his or her reasons with a claim made by an applicant in a sufficiently express way might suggest that the claim had been overlooked: SZPZI v Minister for Immigration & Citizenship [2011] FMCA 530 at [54] and SZQGP v Minister for Immigration & Citizenship [2011] FMCA 701 at [33], that is not the case here. It is apparent from para.16 of the Reviewer’s reasons that he was aware that the applicant claimed “that he would face persecution on account of being a Tamil”. The Reviewer’s awareness of the claim is also demonstrated by quotations from independent country information found at paras.30 and 32 of his reasons. Further, in para.39 the Reviewer expressly accepted “that young Tamils like the claimant were targeted by the army” and at para.41 that “there exists substantial mistreatment of Tamils suspected of having links with the LTTE”.
The Reviewer’s consideration of the applicant’s claims disclosed a close connection between his consideration of the applicant as a Tamil and his consideration of the perceptions of him as a possible LTTE supporter, but he reached separate decisions on these issues. In particular, his conclusion regarding the applicant’s claims based on his ethnicity derived from his consideration of country information which indicated:
… a generally improved situation for Tamils since the ending of the war and that there [was] no longer a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country
which was the applicant’s home area. The Reviewer also had regard to the fact that on the occasions when the applicant had suffered discrimination because he was a Tamil, he had successfully defended charges of being an LTTE sympathiser, had been returned to Colombo after an unlawful act of internal repatriation and had been released without harm on the day he was detained in May 2008. The Reviewer also observed that the applicant had been able to travel to India on three occasions and to Malaysia once without interference. The Reviewer’s consideration of these matters discloses an awareness of and sensitivity to the applicant’s claim based on his ethnicity. This reality manifested itself in the Reviewer’s conclusion at para.45 of his reasons that “the claimant does not face a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of his Tamil race …”.
For these reasons, the first ground of the application is not made out.
Reviewer failed to address claim arising out of materials
The claim arising on the materials which the applicant alleges was not the subject of findings by the Reviewer was a fear arising out of his membership of a particular social group, identified as young Tamil males from the north of Sri Lanka. The applicant submitted that the Reviewer had accepted that he was a young Tamil male from the north of Sri Lanka. The applicant further submitted that although the Reviewer was also aware of and cited the United States Department of State 2010 Human Rights Report: Sri Lanka 8 April 2011, which, amongst other things stated:
Tamils throughout the country, but especially in the conflict-affected north and east, reported frequent harassment of young and middle-age Tamil men by security forces and paramilitary groups
he failed to make any findings concerning the applicant’s fear based on his membership of the particular social group he identified.
The applicant’s claim is, in truth, not that the particular social group of which he claimed membership was not acknowledged by the Reviewer or that the Reviewer did not accept that he was a member of that group, because it is apparent that the Reviewer did, but that the Reviewer did not find that membership of that group gave rise to a well-founded fear of persecution for a Convention reason.
It is true that the Reviewer did not say, in so many words, that young Tamil males from the north, as a group, did not face persecution. However, what he did say was that although in early 2007 the applicant was arrested, detained and beaten and that young Tamils like him were targeted by the army during that period, country information indicated a generally improved situation for Tamils since the end of the war. The Reviewer accepted that individuals suspected of links with the LTTE would be the subject of mistreatment but, impliedly, that those who were not, would not be. Essentially, if obliquely, the Reviewer found that the particular social group which the applicant identified was not subject to persecution and thus the applicant did not have a well-founded fear of persecution on account of his membership of it. The Reviewer did not fail to address a claim as alleged by the applicant.
Conclusion
For these reasons, error on the part of the Reviewer has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 4 November 2011
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